# Opposition Brief — New Jersey v. Garron

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2306%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1160

## Text

[ Court, U.S. ]
FILED

j

| ~DEC 2 2 2003
No. 03-598 |_OFFICE OF THE CLERK

ee

IN THE

Supreme Court of the United States

STATE OF NEW JERSEY,
Petitioner,
V.
ANDERSON GARRON,

Respondent.

ON PETITION FOR Writ OF CERTIORARI
TO THE SUPREME CourT OF NEW JERSEY

BRIEF IN OPPOSITION

JosepH A. LEVIN
LEVANT, Martin & Levin, P.C.
Attorneys for Respondent
3201 Atlantic Avenue
Atlantic City, NJ 08401
(609) 345-9005

184895 ce

COUNSEL PRESS
(800) 274-332] © (800) 359-6859

TABLE OF CONTENTS

Table of Cited Authorities .....................

Statement of the Case .........ccccccccccccecs

Reasons for Denying the Petition ...............

I.

II.

Il.

The Writ Should Be Denied, As The New
Jersey Supreme Court’s Ruling Primarily
Determined That The Trial Court Misapplied
The New Jersey Rape Shield Law And, In So
Doing, Kept From The Jury Highly Relevant
Evidence That Was Necessary For A Fair
Determination Of The Case. .............

The Writ Should Be Denied, As The New
Jersey Supreme Court Properly Reformulated
The New Jersey Rape Shield Statute To Ensure
That It Did Not Violate Respondent’s Right
To Confront Witnesses, Right To Compulsory
Process And Right To A Fair Trial. .......

The New Jersey Supreme Court’s Decision
Does Not Have Any Far-Reaching Implications.

na ¢ oe eee sve tres CSF CH ECO 8 OCHO SE OR? OTD A ED

A. The New Jersey Supreme Court Did Not
Strike Down The Rape Shield Law. ...

B. The New Jersey Supreme Court Decision
Does Not Conflict With Any Other State
Or Federal Decision. ...............

14

24

25

26

Ul

Contents

Page
C. The New Jersey Supreme Court’s Decision
Cannot Be Characterized As Far-Reaching
Even In The State Of New Jersey. ..... 26

ConchiSROR ... «:000810005s eee 27

TABLE OF CITED AUTHORITIES

Page
CASES CITED:
Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142,

a Re eer 16, 18, 23
Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038,

Me” hs oad ik) rr 14, 18, 21-22
Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105,

39 L. Ed. 2d 347 (1974) .....: i re) 434 ae
Douglas v. Alabama, 380 U.S. 415 (1965) ....... 17
Greene v. McElroy, 360 U.S. 474 (1959) ......... 17
Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480,

eT | 23
Pointer y. Texas, 380 U.S. 400, 85 S. Ct. 1065,

ee aE) are 17
Rock y. Arkansas, 483 U.S. 44, 107 S. Ct. 2704,

Ne eS 7) 21, 22
State in the Interest of M.T.S., 129 N.J. 422 (1992)

ea yy bh ow hae debe eens 10
State v. Bray, 356 N.J. Super. 485 (App. Div. 2003)

a a Motel CES Sea ae ar 16
State v. Budis, 125 N.J.519 (1991) ....... 14, 15, 25, 27
State v. Cuni, 159 N.J. 584 (1999) .............. 15

iv

Cited Authorities
Page
State v. Garron, 177 N.J. 147, 827 A.2d 243 (2003)
MRA RRL LU Oe OA EE Ree ee 2
State v. GS., 278 N.J. Super. 151 (App. Div. 1994),
rev'd on other grounds, 145 N.J. 460 (1996)
Gee awe ee Ee a ee ee 16
State v. Ogburne, 235 N.J. Super. 113 (App. Div.

ae TEE EC RO ee ee OE ee re 16

State v. Ross, 249 N.J. Super. 246 (App. Div. 1991)
ee re Ey mere ae ae - 16

State v. W.L., 278 N.J. Super. 295 (App. Div. 1995)
ET ee SE TET Cee ETT Ee Oe Te Ti 16

United States v. Scheffer, 523 U.S. 303, 118 S. Ct.

1261, 140 L. Ed. 2d 413 (1998) ........ 20, 21, 22; 23
Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920,

im &.. BM. 20 BOER UNSOED og vices cco sew nouns 18, 22
Webb v. Texas, 409 U.S. 95 (1972) .............. 18
CONSTITUTIONAL PROVISIONS CITED:
Re ae” Rs eee rere 17
Si» 4... GE EY ok ov beeen cde sbhceks 17
Pa. SB. BP Be xk hein toeeee 17

Cited Authorities

Page
STATUTES CITED:
er ee ee ee ee re 7
NJ. Stat. Amn, 20:14 — 200) ons cen cecveceess 2
ee FS et ree re :
N.J. Stat. Ann. 2C:14-—7a-d............. 3, 4, 6, 8, 19
NJ. Set. Amn. 3090 =e 5. .cccsevcaaes nt: 4 ae
N.J. Stat. Ann. 2C:43 — 6(c) .......... reer es 7
I .5. SOR A. Ps = Fok sav eee eee eee 7
oe Wak. © UTD vs bo oo ee eee ee 14
RULES CITED:
Military Rule of Evidence, 707 ................ 21
NJ. (2. le 232 ~ OO) 5 cv ede vnpes een 9
Py. 44, BOE co cosa taveune eee eee eee 13
A ee | ere errr ye eer 1, 14
OTHER SOURCES CITED:

Cannel, New Jersey Criminal Code Annotated,
comment 4 on N.J.S.A. 2C:14 — 7d (Gann 2003)

]

STATEMENT OFTHE CASE

Respondent Anderson Garron respectfully submits that the
petition for a writ of certiorari should be denied for the following
reasons. Firstly, the New Jersey Supreme Court’s ruling essentially
addressed the misapplication of a state statute by a state trial court.

Put simply, the New Jersey Supreme Court ruled that the trial court
misapplied the New Jersey Rape Shield Statute and, in so doing,
kept from the jury highly relevant evidence, evidence that was
necessary for a fair determination of the trial issues. As such, the
petition for a writ of certiorari should be denied pursuant to
Rule 10 of the Rules of the Supreme Court of the United States,
which sets forth the principle that “a petition is rarely granted when
the asserted error consists of . . . the misapplication of a properly
stated rule of law.”

Secondly, the New Jersey Supreme Court’s ruling that
“if evidence is relevant and necessary to a fair determination of the
issues, the admission of the evidence is constitutionally compelled,”
is in complete accordance with state and federal constitutional
jurisprudence. Pet., App. at 22a — 23a. Thus, the New J ersey
Supreme Court properly reformulated the New J ersey Rape Shield
Statute to ensure that it did not violate defendant’s ri ght to confront
witnesses against him, right to compulsory process, and right toa
fair trial. Since the ruling does not conflict with relevant decisions of
this Court (or other state or federal courts for that matter), there is
no valid reason to grant the petition for a writ of certiorari under
Supreme Court Rule 10(c).

Lastly, the New Jersey Supreme Court’s decision does not
have any far-reaching implications. The Court’s decision did not
strike down the Rape Shield Statute, but rather struck a balance
between “defendant’s right to confrontation and to the compulsory
process of witnesses, and the victim’s right to be free from an
unnecessary invasion of her privacy.” Pet., App. at 2a. Moreover,
the Court’s decision does not conflict with the decisions of any state
or federal courts. Furthermore, the Court’s decision cannot even be
characterized as far-reaching in New Jersey, as the Court expressly

2

stated that the decision was “limited to its unique facts.”
Pet., App. at 28a. Accordingly, the wnt should be denied due to the
lack of far-reaching, national implications.

In actuality, the petition for a writ of certiorari represents a
thinly-veiled piece of victim’s nghts propaganda, pandering to the
victim’s rights movement at the expense of legitimate constitutional
concerns. The petition couches the ruling of the New Jersey Supreme
Court as “emblematic of a national phenomenon demanding global
action only this Court can take.” Pet. at 7. Yet, Petitioner cites no
federal or state court decisions striking down Rape Shield Statutes
at the expense of putative rape victims. To the contrary, the law
cited by Petitioner is inapposite and addresses areas with categorical
preclusions of evidence, such as scientific polygraph evidence, that
have no applicability here. The fact of the matter is that the New
Jersey Supreme Court’s decision in State v. Garron, 177 N.J. 147,
827 A.2d 243 (2003) was sound in all respects and does not require
further review.

A Cumberland County Grand Jury indicted Respondent
Anderson Garron for first-degree aggravated sexual assault pursuant
to N.J. Stat. Ann. 2C:14 — 2a(4), third-degree aggravated sexual
contact pursuant to N.J. Stat. Ann. 2C:14 —3a, and second-degree
official misconduct pursuant to N.J. Stat. Ann. 2C:30 — 2a, arising
out of a sexual encounter between Respondent Anderson Garron, a
Bridgeton Police Officer, and J.S., a former secretary at the'
Cumberland County Prosecutor’s Office. From the inception of the
case, the “precise nature of that encounter was sharply contested
by J.S.” and Respondent. Pet., App. at 2a. J.S. contended that she
was forcibly raped during the encounter. Conversely, Respondent
Anderson Garron steadfastly maintained his innocence and
repeatedly, consistently and emphatically asserted that any sexual
relations that had occurred during the encounter were consensual.

In support of his consent defense, Respondent Anderson Garron
“sought to introduce testimony concerning J.S.’s conduct toward
him in the years leading up to what he claims was a voluntary sexual

3

encounter.” Pet., App. at 3a. Specifically, Respondent sought to
introduce testimony that would demonstrate that there was a
continuing course of conduct between J.S. and Respondent,
which led Respondent to reasonably believe that J.S. freely and
affirmatively consented to the sexual activity of which she complained.
See N.J. Stat. Ann. 2C:14— 7d. Respondent sought to introduce
this crucial testimony under New Jersey’s Rape Shield Statute, which
provides in pertinent part:

a. In prosecutions for aggravated sexual assault, sexual
assault, aggravated criminal sexual contact, criminal
sexual contact, . . . evidence of the victim’s previous
sexual conduct shall not be admitted or a reference made
to it in the presence of the jury except as provided in
this section. . . . Jfthe court finds that evidence offered
by the defendant regarding the sexual conduct of
the victim is relevant and highly material and meets
the requirements of subsections c and d of this
section and that the probative value of the evidence
offered substantially outweighs its collateral nature
or the probability that its admission will create undue
prejudice, confusion of the issues, unwarranted
invasion of the privacy of the victim, the court shall
enter an order setting forth with specificity what
evidence may be introduced and the nature of the
questions which shall be permitted, and the reasons
why the court finds that such evidence satisfies the
standards contained in this section. The defendant
may then offer evidence under order of the court.

b. In the absence of clear and convincing proof to
the contrary, evidence of the victims sexual conduct
occurring more than one year before the date of the
offense charged is presumed to be inadmissible under
this section.

4

d. Evidence of the victims previous sexual conduct
with the defendant shall be considered relevant if it
is probative of whether a reasonable person,
knowing what the defendant knew at the time of
the alleged offense, would have believed that the
alleged victim freely and affirmatively permitted the
sexual behavior complained of.

N.J. Stat. Ann. 2C:14-7(a), (b), (d) [emphasis added].

Pursuant to the dictates of the Rape Shield Statute, the trial
court held a pretrial hearing to determine the admissibility of the
proffered evidence regarding the past relationship between J.S. and
Respondent. At the hearing, Respondent presented five witnesses.
Respondent Anderson Garron testified that J.S. would kiss him,
hug him, brush-up against him, flirt with him, and grab his buttocks.
Further, Respondent Garron testified that J.S. made a multitude of
comments indicating a strong desire to freely and to voluntarily engage
in consensual sexual relations with him. The comments included,
“are you ready to have an affair.” See Pet., App. at 3a— 5a.

Respondent’s wife, Stephanie Garron, who was a detective at
the Cumberland County Prosecutor’s Office, testified and
corroborated Respondent’s testimony. She testified that J.S. would
kiss, hug, brush-up against, and touch Respondent, as well as grab
Respondent’s hand and attempt to pull him away. Moreover, Mrs.
Garron testified that J.S. made a number of comments indicating a
strong desire to engage in consensual sexual relations with
Respondent, including “T’Il take that man away from you ifhe spends
just one night with me,” “Is that your gun or are you happy to
see me,” and other blatant remarks about having an affair with
Respondent. See Pet., App. at 5a — 6a.

Wendy Frost, a secretary in the Cumberland County
Prosecutor’s Office provided testimony that corroborated the
Garrons’ account with respect to the inappropriate touching of
Respondent by J.S., as well as the inappropriate comments.
Ms. Frost even indicated that J.S. stated that she was going to take
Respondent away from his wife. See Pet., App. at 6a— 7a. Similarly,

Diane sat Faia ask rie BE ey

5

Terri Seay, another secretary at the Cumberland County
Prosecutor’s Office, testified in a manner that corroborated the
Garrons’ testimony and that provided further evidence of a course
of conduct indicating a strong desire to freely and voluntarily
to engage in consensual sexual relations with him. See Pet., App.
at 7a. Thus, in summary, all of the witnesses consistently testified
that J.S. had engaged in a course of sexual conduct with Respondent.
See Pet., App. at 3a — 8a.

In a written opinion, the trial court held that Respondent had
offered clear and convincing proof that overcame the presumption
against the admission of sexual conduct of the victim more than one -
year prior to the alleged incident. See Pet., App. at 120a.

The defendant has offered clear and convincing
proof of prior sexual conduct that overcomes the
presumption against the admission [of] sexual
conduct of the victim more than one year prior to
the alleged incident. The Court agrees with the
defendant § position that although the three incidents
of sexual conduct occurred prior to the one year
limitation, the evidence the defendant intends to
offer shows a continuing course of conduct on the
part of J.S. to engage in sexual conduct with the
defendant. In the Courts opinion, the defendant has
overcome the presumption.

Ibid. [emphasis added].

After so holding, despite the fact that the Court found clear and
convincing evidence and found that such evidence showed a
continuing course of conduct, the trial court inexplicably parsed the
conduct and only permitted the admission of three, isolated, unrelated
“instances of sexual conduct.” See Pet., App. at 119a — 121a.
The trial court admitted evidence that J.S. had grabbed Respondent’s
buttocks in 1995 or 1996, that J.S. had kissed Respondent
passionately in March of 1997, and that J.S. had kissed Respondent
passionately on another occasion in 1998, after he had resolved an

6

outstanding bench warrant for her. The trial court found that these
three, isolated, unrelated incidents were admissible under N.J. Stat.
Ann. 2C:14 — 7d in that they showed that J.S. consented to the
sexual conduct by demonstrating “‘a continuing course of conduct
on the part of J.S. to engage in sexual conduct with the
{Respondent].” Even though the trial court admitted these three,
isolated, unrelated instances of conduct, their admission was totally
out-of-context and did not illustrate the “course of conduct” that the
trial court had found by clear and convincing evidence.

Although the remaining testimony directly impacted on the
central issue in the case, consent, the trial court excluded both the
evidence of sexual conduct and the evidence of statements made by
J.S. indicating her consent. The trial court inexplicably concluded
that the remainder of the conduct was “flirtatious” as opposed to
sexual conduct and was not probative of whether J.S. consented to
the sexual activity. As a result of the trial court’s ruling, Wendy Frost
and Terri Seay were barred from testifying at tral with respect to
the course of sexual conduct and with respect to the statements
made by J.S., statements which clearly gave rise to the reasonable
inference that J.S. freely and affirmatively permitted the sexual activity.
Additionally, the trial court severely limited the testimony of
Respondent Anderson Garron and Respondent’s wife.

At trial, J.S. testified that Respondent forced her to engage in
oral sex. With respect to prior sexual conduct with Respondent,
J.S. testified that she never kissed Respondent in a passionate
manner, that she never touched Respondent’s buttocks, and that
she never touched Respondent anywhere on his body. Respondent
attempted to rebut this testimony through his testimony and that of
his wife, however, was not permitted to call any of the neutral,
objective witnesses (e.g., Wendy Frost and Terri Seay) that could
corroborate his account of the kissing and touching.

Furthermore, at trial, Respondent testified that he was innocent
and that all sexual activity between J.S. and him was consensual.
The entire case came down to a credibility determination, whereby

Serervons.

ej cn Bae RT teal Le ot alk LP IIb - «

rah),

7

the jury had to choose to believe either Respondent or J.S. The trial
court’s ruling that Respondent Garron had proven, by clear and
convincing evidence, a continuing course of conduct on the part of
J.S. to engage in sexual conduct with Respondent could not
co-exist with its subsequent exclusion of almost the entirety of the
conduct. As stated, the end result was that J.S. was permitted to tell
her story, while Respondent was severely restricted. Instead of being
able to apprise the jury as to the reason that he believed J.S. freely
and affirmatively consented and to testify to this continuing course
of sexual conduct, he was forced to testify to isolated, unrelated
incidents that did not present a full picture. In fact, in isolation, the
incidents made little sense. As such, the jury made the necessary
credibility determination without truly hearing Respondent’s version
of historical events.

Having received an inaccurate and incomplete picture of events
leading up to the September 28, 1998 sexual encounter, not
surprisingly, the jury convicted Respondent as to all counts. In turn,
the trial court rendered imposition of sentence. On count one,
aggravated sexual assault, Respondent was sentenced to 11 years
in the New Jersey State Prison with a three and two-thirds year
period of parole ineligibility pursuant to the Graves Act, codified
under N.J. Stat. Ann. 2C:43 — 6(c). On count two, aggravated
sexual contact, Respondent was sentenced to three years in the
New Jersey State Prison with a one-year period of parole ineligibility
under the Graves Act. On count three, official misconduct,
Respondent was sentenced to six years in the New Jersey State
Prison. Although the counts did not merge, the sentences on all three
counts were to run concurrently. In addition, the trial court applied
the No Early Release Act pursuant to N.J. Stat. Ann. 2C:43 — 7.2
and imposed the requisite 85% period of parole ineligibility and a
five-year period of parole supervision. Finally, the trial court indicated
that Respondent’s convictions for aggravated sexual assault and
aggravated sexual contact subjected him to Megan’s Law reporting
requirements under N.J. Stat. Ann. 2C:7 — 1, et seq.

8

After sentencing, Respondent immediately filed an appeal,
challenging, among other things, the trial court’s ruling under the
Rape Shield Law. Petitioner, State of New Jersey, failed to file a
cross-appeal and did not challenge the trial court’s initial piercing of
the Rape Shield Statute. Thus, presumably, Petitioner conceded
that the trial court properly pierced the Rape Shield Statute.
The issue in the Superior Court of New Jersey, Appellate Division,
therefore, was whether the trial court properly applied the Rape
Shield Statute.

In an unpublished opinion, the majority of the Appellate Division
(Per Curiam) affirmed the judgment of conviction in all respects
and found that the trial court properly had applied the Rape Shield
Statute. In a dissent, Judge Wecker found that the trial court had
committed reversible error in excluding under the Rape Shield
Statute, N.J. Stat. Ann. 2C:14— 7, highly relevant evidence that
went to the heart of the consent defense. See Pet., App. at 103a —
105a. In particular, Judge Wecker presciently stated:

The jury heard about three incidents of physical
contact which the judge deemed relevant, but the
Jury never heard substantial available evidence from
several witnesses of J.S. 5 explicit verbal invitations
to defendant. And the jury heard only a fraction of
the available evidence from several witnesses of
J.S.s expressed desires with respect to him, that
coming from Mrs. Garron and not from two
independent witnesses. The entirety of J.S.'s
remarks, if known to and believed by the jury had
the potential for creating reasonable doubt in the
mind of at least one juror. To artificially distinguish
past encounters between the defendant and J.S. on
the ground that some were “merely flirtatious”
reflects a failure to appreciate the legitimate and
compelling purpose for which the evidence was

offered.

See Pet., App. at 104a [emphasis added]. Based upon the dissent,
Respondent appealed to the Supreme Court of New Jersey as a

9

matter of right under R. 2:2 — 1(a)(2). The issue, again, was the
application of the New Jersey Rape Shield Statute by the tnal court.

The New Jersey Supreme Court expressly stated that the issue
was whether the trial court properly applied the Rape Shield Statute.
After so stating, the State Supreme Court applied the state statute
and determined that the trial court had erred in its exclusion of the
necessary, crucial, relevant evidence pertaining to corisent. Thereafter,
the New Jersey Supreme Court went on to reformulate the New
Jersey Rape Shield Statute in accordance with state and federal
constitutional precedent and to apply the reformulated statute to the
same effect.

REASONS FOR DENYING THE PETITION

I. THE WRIT SHOULD BE DENIED, AS THE NEW
JERSEY SUPREME COURT’S RULING PRIMARILY
DETERMINED THAT THE TRIAL COURT
MISAPPLIED THE NEW JERSEY RAPE SHIELD
LAW AND, IN SO DOING, KEPT FROM THE JURY
HIGHLY RELEVANT EVIDENCE THAT WAS
NECESSARY FOR A FAIR DETERMINATION OF
THE CASE.

From the outset, the New Jersey Supreme Court framed the
issue before the Court as an issue of application:

We must determine whether the trial court properly
applied the Rape Shield Statute, N.J. Stat. Ann. 2C:14
— 7, in excluding evidence of the victims past
relationship with defendant. Defendant claims that the
excluded evidence would have explained the events
leading to the sexual encounter and to the victim’s
consent and, therefore, was critical to a fair trial.
The State claims that the victim’s prior conduct did not
possess sufficient probative value on the ultimate issue
before the jury, whether the defendant forced the victim
to perform a sexual act against her will. In these
competing arguments are found the tension between

10

defendant’s right to confrontation and compulsory
process of witnesses, and the victim’s right to be free
from an unnecessary invasion of privacy. We conclude
that the trial court misapplied the Rape Shield Statute
in keeping from the jury highly relevant evidence
that was necessary for a fair determination of the
case and, therefore, reverse and remand for a new
trial.

la—2a [emphasis added]. In essence, the New Jersey Supreme
Court ruled that the trial court misapplied the New Jersey Rape
Shield Statute and, in so doing, kept from the jury highly relevant
evidence, evidence that was necessary for a fair determination of
the trial issues. Therefore, the New Jersey Supreme Court’s ruling
at its heart involves the misapplication ofa state statute by a state
trial court.

In applying the Rape Shield Statute to the facts, the Supreme
Court stated:

One view is that she engaged in office buffoonery, bawdy
humor, and innocent but self-indulgent attention seeking.
Another view is that she aggressively pursued defendant
using humor as a thinly-veiled cover for her sexual
advances. The jury was particularly well suited to divine
the true meaning of the language and conduct of J.S.
... In this case, “[t]he role of the factfinder [was] to
decide. . . whether. . .defendant’s belief that the alleged
victim had given affirmative permission was reasonable.”
State in the Interest of M.T.S., 129 N.J. 422, 448
(1992). Defendant’ state of mind was directly at
issue. How defendant's prior relationship with J.S.
affected his state of mind was critical to the ultimate
determination of the jury.

The trial judge permitted only fragmented pieces of
evidence to be presented to the jury concerning J.S.s
relationship with defendant. The judicial censorship
did more than distort the true picture of events

x
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2
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8

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leading to the sexual encounter, it made it less likely
that the jury would believe any part of the defense —
of consent. The trial court allowed testimony by the

defendant concerning J.S.’s two passionate kisses and

her grabbing his derriere. However, J.S. denied that

those events ever occurred. Therefore, the truth

regarding those incidents and the sexual encounter was

reduced to a credibility contest between just two

people. Without the testimony of independent witnesses

from the Cumberland County Prosecutor’s Office who

were able to give examples of J.S.’s public shows of
affection toward defendant, it was less likely that the

jury would believe that J.S. passionately kissed defendant

and grabbed his buttocks, and that in tum made it less

likely that the jury would find believable defendant’s

consent defense. Had J.S. contradicted Frost and

Seay’s testimony describing J.S.’s physical advances

toward defendant, as well as her sexually alluring

remarks, the case would not have boiled down to a “he

said-she said” dispute. The credibility determination

between J.S. and defendant may well have hinged
on the presentation of seemingly disinterested
witnesses whose testimony had no partisan flavor,

testimony that would have buttressed defendants

assertions. Each piece of evidence delicately

supported another in the presentation of the consent

defense, and the removal of key pieces of evidence

presaged the total collapse of that defense. Applying
another metaphor, the jury was given a book with

missing chapters.

In this case, the information withheld from the jury did
not concem the victim’s intimate relations with persons
other than this defendant. The withheld evidence did
not paint the victim as a woman with a sordid past,
making her allegations unworthy of belief. The withheld

12

evidence, however, did shed light on the victim’s
relationship with defendant. However, unflattering or
embarrassing the details, the evidence was offered for
a legitimate objective, to support defendant’s consent
defense. The story left untold by defendant was of a
woman infatuated with him and who pursued him
aggressively, even in the presence of her fellow office
workers and his wife. The defendant needed to explain
why he was at the victim’s house in the early morning of
September 28, why he followed her into the laundry
room of her home, and why he reasonably believed she
consented to have sexual relations with him. The untidy
details of defendant’ relationship with J.S. were
essential to understanding his side of the story.
Selectively editing those details, as the trial court
did here, did not advance the truth-seeking function
of the trial.

The verbal and physical conduct, both sexual and
flirtatious, was, for the most part, inextricably intertwined
in acourse of conduct over a six-year period.

The trial judge found at the Rape Shield hearing
that defendant had presented clear and convincing
proof of “a continuing course of conduct on the part
of J.S. to engage in sexual conduct with the
defendant.” However, by excluding the vast majority
of that evidence, the jury had no inkling of the course
of conduct and was left to evaluate the conflicting
versions of the incident in question within the
confines of the contested buttocks-grabbing and two
passionate kisses, each of which occurred more than
one year apart and appeared to be wholly unrelated
to each other and to the incident in question.
The excluded evidence of J.S. 5 conduct was relevant

13

and necessary for a fair determination of the
witnesses’ relative credibility and on the ultimate

- issue of consent. We therefore conclude that the
exclusion of the evidence was “clearly capable of
producing an unjust result,” R. 2:10-2, and reverse
and remand for a new trial.

Pet., App. at 24a — 25a, 27a, 28a, 30a [emphasis added].

Unquestionably, the crux of the New Jersey Supreme Court’s
ruling involved the application of the New Jersey Rape Shield Statute.
As Petitioner notes, the New Jersey Supreme Court “reformulated”
the New Jersey Rape Shield Statute in a manner consistent with the
pre-1994 amendment. Prior to the 1994 amendment, the Rape
Shield Statute required that the evidence be “relevant” and that the
evidence’s probative value not be “outweighed” by its collateral
nature, confusion of the issues or an unwarranted invasion of the
victim’s privacy. The 1994 amendment required that the evidence
be “relevant and highly material” and that the evidence’s probative
value “substantially outweigh” the above-listed collateral-confusion-
privacy concems. Thus, the difference between the two versions of
the Rape Shield Statute comes down to the modifiers “highly” and
“substantially.”

However, Petitioner fails to recognize that the New Jersey

Supreme Court applied both the pre- and post-1994 amendment
versions of the statute. For example, in the beginning of its opinion,

the Court concluded that the trial court “misapplied the Rape Shield

in keeping from the jury highly relevant evidence that was necessary

; for a fair determination of the case.” Pet. at la— 2a. Subsequently,
i the Court dispensed with the modifier “highly” and simply found
that the trial court improperly excluded evidence of J.S.’s conduct
that “was relevant and necessary for a fair determination of the
witnesses’ credibility on the ultimate issue of consent.” Pet. at 30a.
Under the application of either version of the Rape Shield Statute,
regardless of the modifiers utilized by the New Jersey Supreme
Court, the application was the same — the New Jersey Supreme
Court ruled that the trial court’s erroneous exclusion of highly

|

ag Soke a See Aa IS

Ce teR SRE eS

14

relevant (or merely relevant) evidence that was necessary for a
fair trial mandated reversal of the judgment of conviction and
remand for a new trial. There is no reason to grant the writ if the
result remains the same under either version of the statute.
Furthermore, there is no reason to grant the petition for a writ of
certiorari when the New Jersey Supreme Court’s ruling, at its
essence, addressed the misapplication of a state statute by a
state trial court.

Based upon the foregoing, the petition for a wnit of certiorari
should be denied pursuant to Rule 10 of the Rules of the Supreme
Court of the United States, which sets forth the principle that
‘a petition 1s rarely granted when the asserted error consists of
... the misapplication of a properly stated rule of law.”
Additionally, the petition for a wnt of certiorari should be denied
for lack of jurisdiction pursuant to 28 U.S.C. § 1257(a), as the
application of the state statute is the primary issue addressed
below.

Il. THE WRIT SHOULD BE DENIED, AS THE
NEW JERSEY SUPREME COURT PROPERLY
REFORMULATED THE NEW JERSEY RAPE
SHIELD STATUTE TO ENSURE THAT IT DID NOT
VIOLATE RESPONDENT’S RIGHT TO CONFRONT
WITNESSES, RIGHT TO COMPULSORY PROCESS
AND RIGHT TOA FAIR TRIAL.

In New Jersey, whenever a defendant asserts that the
exclusion of evidence under the Rape Shield Law violates his
state and federal constitutional rights, such as the right to
confrontation, to cross-examination, to compulsory process, to
a fair trial, and so forth, the exclusion of such evidence must be
closely scrutinized. State v. Budis, 125 N.J. 519 (1991) (citing
Chambers v. Mississippi, infra, 410 U.S. at 295). In so doing,
the New Jersey Supreme Court consistently has held that a two-
step analysis must be employed:

First, we must ascertain, apart from the rape
shield statute, whether the evidence was relevant

aS ote eae |

BEE PINS SAT tl gy FCG PAE iat Pt

15

to the defense. If the evidence is relevant, we then
must decide whether its probative value outweighs
its prejudicial effect. If so, the evidence may not
constitutionally be excluded.

State v. Budis, 125 N.J. at 532 [emphasis added]; see also State
v. Cuni, 159 N.J. 584, 600 (1999).

The New Jersey Supreme Court employed this two-step
analysis in State v. Budis, 125 N.J. at 527. In this aggravated sexual
assault case involving a minor victim, the defendant moved to
introduce details of prior sexual abuse committed by the victim’s
step-father. The trial court barred the introduction of such evidence
under the Rape Shield Statute and significantly restricted defendant's
cross-examination of the victim and the assigned-detective.
Id. at 532. On appeal, the New Jersey Supreme Court found that
the prior abuse was relevant for two reasons.

First, it rebuts that inference that T.D. acquired the
knowledge to describe the sexual matters from her
experience with defendant. Second, the evidence is
relevant to show that T.D. had the knowledge to initiate
the sexual acts as described by defendant.

Id. at 534. Additionally, the Court determined that there was no
undue prejudice in admitting the evidence.

Weare sensitive to the possibility that evidence of T.D.’s
prior abuse may invade her privacy and cause her anxiety
or embarrassment. On balance, we believe that these
factors do not outweigh the significant probative value
of the evidence.

Id. at 540. The New Jersey Supreme Court heid that the evidence
of past abuse should have been admitted and that its non-admission
constituted reversible error. Jd. at 541.

The ruling in Budis, supra, stands for the proposition that “neither
statutes nor evidence rules may bar defendant from using evidence
and material relevant to his defense where the bar would violate the

16

constitutional right to confront and cross-examine witnesses.”
Cannel, New Jersey Criminal Code Annotated, comment 4
on N.J. Stat. Ann. 2C:14 — 7d (Gann 2003). As a result of the
proposition, “the list of particular subjects in the [Rape Shield
Statute] is treated as illustrative rather than exhaustive.” The New
Jersey Courts have not hesitated to admit evidence not
particularly set forth in the statute in order to protect defendants’
constitutional rights, including the right to confront and cross-
examine witnesses. See, e.g., State v. Bray, 356 N.J. Super.
485, 494 — 96 (App. Div. 2003) (recognizing that the
Confrontation Clause requires the admission of prior sexual
abuse of a child victim to demonstrate an alternate source of
sexual knowledge); State v. G.S., 278 N.J. Super. 151, 169
(App. Div. 1994), rev'd on other grounds, 145 N.J. 460 (1996)
(finding that barring a witness from testifying as to facts in the
indictment would be improper); State v. W.L.,278 N.J. Super.
295 (App. Div. 1995) (permitting use of diaries of child-victim
to support theory that another sexually abused victim); State v.
Ross, 249 N.J. Super. 246 (App. Div. 1991) (permitting
testimony about prior sexual abuse, for precluding such an
inquiry would deny defendant his right to cross-examination);
State v. Ogburne, 235 N.J. Super. 113, 117 (App. Div. 1989)
(permitting inquiry with respect to possible source of pubic hair
found on bedclothes).

In sum, New Jersey Courts have long adhered to the
proposition that, if the evidence is relevant and necessary to a
fair determination of the issues, then the admission of such
evidence is constitutionally compelled. See Pet., App. at 22a.
New Jersey’s approach is in complete accordance with this
Court’s jurisprudence.

Both the New Jersey and United States Constitutions
guarantee deferidants “a meaningful opportunity to present a
complete defense.” Pet., App. at 19a (quoting Crane v.
Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90
L. Ed. 2d 636, 645 (1986)). The opportunity to present a

*
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4
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17

complete defense “would be an empty one if the State were
permitted to exclude competent, reliable evidence bearing on
.. .credibility. . . when such evidence is central to the defendant’s
claim of innocence.” Pet., App. at 19a (quoting Crane vy.
Kentucky, 476 U.S. at 690, 106 S. Ct. at 2147, 90 L. Ed. 2d
at 645).

The Sixth Amendment of the United States Constitution, and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
the right of an accused in a criminal prosecution “to be confronted
with the witnesses against him.” U.S. Const., Amends. VI & XIV;
N.J. Const., Art. I, Para. 10; See also Pointer v. Texas, 380 U.S.
400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

Confrontation means more than being allowed to
confront the witness physically. ‘Our case is construing
the [confrontation] clause hold that a primary interest
secured by it is the right of cross-examination.’ Douglas
v. Alabama, 380 U.S. 415, 418(1965).

[Cross-examination] is the principal means by which
the believability of a witness and truth ofhis testimony is
tested. . . . [T]he cross-examiner is not only permitted
to delve into the witness’ story to test the witness’
perceptions and memory, but the cross-examiner has
traditionally been allowed to impeach, 1.e., discredit,
the witness . .. Amore particular attack on the witness’
credibility is effected by means of cross-examination
directed toward revealing the possible biases, prejudices,
or ulterior motives of the witness as they may relate
directly to issues or personalities in the case at hand. . .
We have recognized that the exposure of a witness’
motivation in testifying is an important function of the
constitutionally protected nght of cross-examination.
Greene v. McElroy, 360 U.S. 474, 496 (1959).

Davis v. Alaska, 415 U.S. 308, 315-16 (1974).

18

Thus, an accused’s constitutionally protected right to confront
and cross-examine witnesses against him is “more than a desirable
rule of trial procedure.” Chambers v. Mississippi, 410 U.S.
284, 295 (1973).

[Cross-examination] is implicit in the constitutional
right of confrontation, and helps assure the ‘accuracy
of the truth-determining process.’ It is, indeed, ‘an
essential and fundamental requirement for the kind
of fair trial which is this country’s constitutional goal.’
[Its denial or significant diminution calls into question
the ultimate “ ‘integrity of the fact-finding process’ ”
and requires that the competing interest be closely
examined.

Id. [Citations omitted].

In addition to an accused’s fundamental right to confront
and cross-examine witnesses against him, it is axiomatic that an
accused may also present a defense and call witnesses on
his own behalf. See, e.g., Webb v. Texas, 409 U.S. 95 (1972);
Washington v. Texas, 388 U.S. 14, 19 (1967). In fact,

few rights are more fundamental than that of an
accused to present witnesses in his own defense.

Chambers v. Mississippi, 410 U.S. at 303.

It was in this light that the New Jersey Supreme Court
scrutinized the constitutionality of the 1994 amendment to the
Rape Shield Statute. As stated, the New Jersey Rape Shield
Statute was amended in 1994 “‘to strike an appropriate balance
between protecting a defendant’s constitutional rights and
protecting a rape victim from an assault upon the victim’s
character.” Pet., App. at 18a. Prior to the amendment, the statute
required that the evidence be

Relevant and that the probative value of the
evidence offered is not outweighed by its collateral
nature or by the probability that its admission will

19

create undue prejudice, confusion of the issues, or
unwarranted invasion of privacy of the victim.

And material to negating the element of force or
coercion.

Pet., App. at 18a (citing N.J. Stat. Ann. 2C:14-—7a&c (1988)
[emphasis added]). The amended Rape Shield Statute required that
the evidence be

Relevant and highly material and meet [] the
requirements of subsection... d... and that the
probative value of the evidence offered substantially
outweigh [ | its collateral nature..

Pet., App. at 18a (citing N.J. Stat. Ann. 2C:14 — 7a (1994)
[emphasis added]). The New Jersey Supreme Court stated:

An unconstrained reading of the Statute leads to the
exclusion of prior sexual conduct unless it is highly
material and its probative value substantially outweighs
its prejudicial effect. . . . Accordingly, evidence of prior
- sexual conduct that is only material (not highly material)

and that has probative value outweighing (not
substantially outweighing) its prejudicial impact would
not be admissible at trial. That formulation would keep
from the jury evidence that is admissible under the
Confrontation and Compulsory Process Clauses, and
the constitutional standards enunciated in Budis.
We must construe the statute so that its reach does
not exceed its constitutional limits. We reaffirm the
test advanced in Budis that evidence relevant to the
defense that has probative value outweighing its
prejudicial effect must be placed before the trier of
fact. We do not read the Shield Statute in a way that
would deny a defendant a fair trial. In summary,
evidence that is relevant and necessary to prove the

” defense of consent is not excluded under the Shield
Statute.

20

Stated in a different way, if evidence is relevant
and necessary to a fair determination of the issues,
the admission of the evidence is constitutionally
compelled.

Pet., App. at 22a — 24a.

Thus, the New Jersey Supreme Court properly reformulated
the New Jersey Rape Shield Statute to ensure that the it did not
violate Respondent’s right to confront witnesses against him, right
to compulsory process, and right to a fair trial. The Court’s ruling
— that “if the evidence is relevant and necessary to a fair
determination of the issues, the admission of the evidence is
constitutionally compelled” — remains completely consistent with
state and federal jurisprudence. Pet., App. at 22a.

Petitioner argues that the Supreme Court of New Jersey
failed to apply the analysis set forth in United States v. Scheffer,
523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998),
wherein this Court stated:

A defendant’s right to present relevant evidence is
not unlimited, but rather is subject to reasonable
restrictions. A defendant’s interest in presenting such
evidence may thus “ ‘bow to accommodate other
legitimate interests in the criminal trial process.’ ”
As aresult, state and federal rulemakers have broad
latitude under the Constitution to establish rules
excluding evidence from criminal trials. Such rules
do not abridge an accused’s right to present a
defense so long as they are not “arbitrary” or
“disproportionate to the purposes they are designed
to serve.” Moreover, we have found the exclusion
of evidence to be unconstitutionally arbitrary or
disproportionate only where it has infringed upon
a weighty interest of the accused.

Id. at 308.

21

It is not the Supreme Court of New Jersey that fails in its
application, but rather Petitioner who fails to recognize that the
Court did apply the analysis. The New Jersey Supreme Court
acknowledged that constitutional rights “may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process.” Pet., App. at 20a. However, the Court
went on to state that, “when the mechanistic application of a
state’s rules of evidence or procedure would undermine the truth-
finding function by excluding relevant evidence necessary to a
defendant’s ability to defend against the charged offenses, the
Confrontation and Compulsory Process Clauses must prevail.”
Ibid. The Court properly found that exclusion of the evidence
infringed upon the weighty constitutional interests of the accused -
to confront witnesses against him, to compulsory process, to
present a defense, to a fair trial, and so on. It cannot be more
clear than the Court’s finding that the exclusion of the evidence
compromised defendant’s ability to defend against the charges.
Pet., App. at 20a.

In fact, when viewed in context, United States v. Scheffer,
supra, actually supports the ruling of the New Jersey Supreme
Court. In Scheffer, This Court addressed the question of
whether Military Rule of Evidence, 707, which categorically
precluded polygraph evidence in court-martial proceedings,
unconstitutionally abridged the right of the accused members of
the military to present a defense. This Court held that the
categorical preclusion of the evidence was constitutional, because
the evidence was unreliable, because the exclusion of the evidence
preserved the fact-finder’s core function of making credibility
determinations, and because the exclusion of the evidence
avoided litigation over issues other than guilt or innocence.

In Scheffer, in holding that the exclusion of the polygraph
evidence was constitutionally permissible, this Court rejected
the applicability of Rock v. Arkansas, Washington v. Texas,
and Chambers v. Mississippi. In Rock v. Arkansas, 483 U.S.
44, 52, 62, 107 S. Ct. 2704, 2709, 2714, 97 L. Ed. 2d 37, 46,

22

52 — 53 (1987), this Court held that the exclusion of hypnotically-
refreshed testimony that was material and favorable to the
accused, tending to show that the gun accidentally discharged,
violated defendant’s right to compulsory process. In Washington
v. Texas, 388 U.S. 14, 16, 23, 87 S. Ct. 1920, 1921 — 22,
1925, 18 L. Ed. 2d 1019, 1021, 1025 (1967), the Court held
that the defendant’s right to compulsory process was violated
by excluding the co-defendant’s testimony with respect to the
circumstances of the shooting, when such testimony was “‘vital”
to the defense’s theory as to who fired the fatal shot. In Chambers
v. Mississippi, 410 U.S. at 294 — 303, 93 S. Ct. at 1045 — 49,
35 L. Ed. 2d at 308 — 313, the Court held that the defendant’s
rights to confrontation and compulsory process were violated
by the preclusion of cross-examination and the exclusion of direct
testimony regarding a third-party’s oral and written confessions
to the charged-murder, finding that such evidence was “critical”
to the defendant’s defense of third-party guilt.

As stated, when viewed in context, Scheffer appears to
support the ruling of the New Jersey Supreme Court. Unlike the
evidence in Scheffer, the proffered evidence regarding J.S.’s
prior sexual conduct was reliable, its admission would have
preserved the core fact-finders core function of making credibility
determinations, and its admission directly impacted on the issue
of guilt or innocence. Under Scheffer s reasoning, the evidence
in the case at bar would have been admissible.

Additionally, the cases discussed and rejected in Scheffer
— namely, Rock v. Arkansas, Washington v. Texas, and
Chambers y. Mississippi — are squarely on point here. As in
those cases, the New Jersey Supreme Court found that the
admission of the proffered evidence was “critical to the ultimate
determination of the jury,” “was necessary for defendant to

receive a fair trial,” “was relevant and necessary for a fair
determination of the witnesses’ relative credibility and on the
ultimate issue of consent.” Pet., App. at 25a, 27a, 30a. The New
Jersey Supreme Court concluded that the “exclusion of the

23
evidence was ‘clearly capable of producing an unjust result.’ ”
Therefore, there can be no question that the New Jersey Supreme
Court found the exclusion of the evidence to have infringed upon
a weighty interest of the accused.

Similarly, the New Jersey Supreme Court expressly relied
upon Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39
L. Ed. 2d 347 (1974). In Davis, the State’s key witness was a
juvenile, who was serving a probationary term for a juvenile
adjudication at the time he cooperated with the State and
provided information that defendant was involved in a burglary.
When the juvenile took the stand, the defense sought to cross-
examine him regarding his bias, contending that due to his
probationary status the juvenile had an incentive to curry favor
with the State. The trial court precluded the cross-examination
on the basis of the provisions protecting the juvenile’s interests
in the confidentiality of his juvenile adjudication. This Court
reversed the conviction and held that “[t]he State’s policy interest
in protecting the confidentiality of a juvenile offender’s record
cannot require yielding of so vital a constitutional right as the
effective cross-examination for bias of an adverse witness.”
id. at 320, 94S. Ct. at 1112, 39 L. Ed. 2d at 356.

Again, the New Jersey Supreme Court’s decision is in
complete accord with Davis v. Alaska. See also Olden v.
Kentucky, 488 U.S. 227, 229 — 33, 109 S. Ct. 480, 482 — 84,
102 L. Ed. 2d 513, 518 — 20 (1988) (holding that the right to
confront witnesses was violated by precluding cross-examination
regarding the rape victim’s cohabitation with defendant’s half-
brother, as such evidence was “crucial” to consent defense);
Crane v. Kentucky, 476 U.S. at 690, 106 S. Ct. at 2146, 90
L. Ed. 2d at 645 (holding that the admission of testimony
“central” to the defense regarding the reliability of the juvenile’s
murder confession was necessary for a fair trial).

Petitioner’s misplaced reliance upon the Scheffer case
reveals the fundamental flaw in the entirety of Petitioner’s
arguments. Petitioner draws attenuated analogies to issues

24

unrelated to the issue addressed by the Supreme Court of New
Jersey and then draws sweeping conclusions based upon the
analogies. For example, Petitioner attempts to analogize
Respondent’s right to present crucial evidence, evidence
necessary for a fair determination of the ultimate issue of consent,
to the admission of a conviction more than ten years old for
impeachment purposes. See Pet. at 23 — 24. Clearly, the
comparison is flawed. There is a tremendous difference between
evidence truly essential to the ultimate issue in the case, namely
consent, and rote and remote impeachment evidence.

Moreover, Petitioner refers to, and discusses at length,
articles and studies on rape and reporting rates in the United
States, when no one disputes the seriousness of the crime and
when no one disputes that rape victim’s have a legitimate interest
in Rape Shield Laws. At certain points, Petitioner’s submission
constitutes nothing more than victim’s rights propaganda.
At others, Petitioner fails to recognize that there must be a balance
between the interests of victims and the fundamental,
constitutionally guaranteed nghts of defendants. When tension
arises that threatens to undermine the fairness of the criminal
trial process and call into question the resulting verdict, then
defendant’s constitutional right to confront witnesses, to
compulsory process, to a fair trial and so on should prevail.

Il]. THE NEW JERSEY SUPREME COURT’S DECISION
DOES NOT HAVE ANY FAR-REACHING
IMPLICATIONS. _

In its petition, Petitioner argues that the New Jersey Supreme
Court’s ruling “is emblematic of a national phenomenon
demanding the global action only this Court can take. Time and
time again, we have seen a weakening of state rape shield
laws... .” Pet. at 7. Further, Petitioner argues that the ruling will
“cast doubt on the evidence rules of the federal government and
a number of states.” Pet. at 24 —25. Without doubt, Petitioner
greatly overstates the significance of the New Jersey Supreme
Court’s ruling.

25

A. THE NEW JERSEY SUPREME COURT DID
NOT STRIKE DOWN THE RAPE SHIELD LAW.

The New Jersey Supreme Court did not strike down the
New Jersey Rape Shield Statute. Rather, in reality, the New
Jersey Supreme Court simply reaffirmed the Budis two-step
analysis to determining when to admit evidence pertaining to a
victim’s past sexual conduct, an analysis employed by the New
Jersey Courts for years. See Cannel, New Jersey Crimes Code
Annotated, comment 4 on N.J. Stat. Ann. 2C:14 — 7d (stating
that the “1994 changes in the statute can have no effect on that
rule since it is required to preserve the statute from constitutional
attack’’). As such, contrary to the assertions in the petition,
nothing has changed. The effect of the Court’s ruling in New.
Jersey will be minimal. The effect of the Court’s ruling elsewhere
will be non-existent.

The New Jersey Supreme Court rightly recognized the
important, diametrically opposed competing interests and struck
a balance that served such interests:

| At stake in our evaluation of N.J. Stat. Ann. 2C:14—7
: are competing rights: the right of a person accused of
a crime to confront his accuser and to present
evidence in support of his defense, and the right ofa
victim to maintain her privacy from unwarranted
intrusions into her past. In balancing these competing
claims, we must look to the nature and quality of the
evidence offered and the need for that evidence to
assure a fair determination of the issues.

On the one hand, the Shield Statute is intended to
encourage the reporting of sexual abuse by assuring
victims that they will not be subject to untoward
invasions of privacy through excessive and collateral
cross-examination of their prior sexual conduct.
That objective also recognizes that jury verdicts

26

should not be based on prejudicial excursions into
the non-probative private affairs of a victim. On the ~
other hand, the Statute preserves the core values that
are protected by the Federal and State Confrontation
Clauses — the right of the accused to present all
relevant evidence necessary for the defense and the
right to a fair trial. The privacy interest of the victim
must be measured against preserving the integrity of
the fact-finding process, the objective of which is to
achieve a just verdict.

Pet., App. at 16a. The reformulation of the statute correctly balanced
those interests.

B. THE NEW JERSEY SUPREME COURT
DECISION DOES NOT CONFLICT WITH ANY
OTHER STATE OR FEDERAL DECISION.

As stated, Petitioner has asserted that the New Jersey
Supreme Court’s ruling will have far-reaching ramifications in
state and federal jurisprudence. However, Petitioner fails to cite
any reported decision that conflicts with the ruling. Petitioner
further fails to note that New Jersey still maintains one of the
strongest Rape Shield Laws in the country. Pet., App. at 36a —
37a. Accordingly, it appears that the ruling’s has little potential
for casting doubt on the evidence rules of the states or the federal
government.

C. THE NEW JERSEY SUPREME COURT’S
DECISION CANNOT BE CHARACTERIZED AS
FAR-REACHING EVEN IN THE STATE OF
NEW JERSEY.

As the New Jersey Supreme Court noted, its ruling cannot
be characterized as far-reaching even in the State of New Jersey.

The case before us is limited to its unique facts.
We do not suggest that in other contexts personal
interactions such as a compliment, a hug, or even an

|
|
|
|

27

occasional off-color comment or joke, should be
viewed as anything other than ordinary socializing.
The circumstances of each case will determine
whether the conduct has bearing on the issue of
consent.

Pet., App. at 28a [emphasis added].

In sum, the New Jersey Supreme Court’s ruling is a narrow
ruling, in which the state court of last resort ruled upon the
application of a state statute. Further, the Court basically
reaffirmed the existing rule of law under State v. Budis, supra.
and reformulated the statute in accordance with the state and
federal constitutional principles cited therein. Accordingly, the
petition for a writ of certiorari should be denied.

CONCLUSION

Based upon the foregoing arguments, Respondent Anderson
Garron respectfully requests that this Honorable Court deny the
petition for a writ of certiorari.

Respectfully submitted,

JOSEPH A. LEVIN

LEVANT, Martin & Levin, P.C.
Attorneys for Respondent
3201 Atlantic Avenue

Atlantic City, NJ 08401

(609) 345-9005

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2306%3A2. Public record. Not legal advice.